Outdated public health legislation to ‘recover’ amid pandemic

THERE is no doubt that laws must evolve with society to reflect the present day circumstances which they govern. However, in Guyana this has not always been the case as there is a plethora of archaic legislation still on the country’s law books.

At the onset of the COVID-19 pandemic, there was no Parliament to promulgate any laws as Guyanese had recently voted and were still patiently awaiting the results of the March 2, 2020 General and Regional Election, and, as such, Parliament was dissolved.

With no treatment for the COVID-19 virus, the internationally recommended measures to curb the spread were the implementation of curfews and the restriction of social activities, which required legislation to be executed and to stipulate penalties for breaches of any offences.

At that time a significant piece of legislation which governs the country’s public health sector became relevant and it was highlighted that to date the public health sector has been governed by the Public Health Ordinance, enacted since in 1934.

Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C, during an interview with the Guyana Chronicle, explained that the archaic piece of legislation is outmoded and unfitting to reflect the current realities of society, and as such a new Public Health Act is being formulated.

“Guyana’s public health infrastructure is radically different from what it was in 1934, and the COVID-19 pandemic has graphically revealed how almost dysfunctional the law is,” Nandlall said.

The COVID-19 Emergency Measures were crafted and gazetted to publish the guidelines which set the law pertaining to, and governs, the COVID-19 pandemic and to which citizens are to adhere.

It is elementary knowledge that, in law, one of the aims of ‘sentencing’ is deterrence. In the particular circumstances that aim is of importance to achieve the objectives of the gazetted COVID-19 Emergency Measures. If the penalty has a deterrent effect, when it is imposed on someone, others would be wary to commit the same offence.

OUT OF SYNC WITH REALITY

“Penalties for offences under the ordinance are all out of sync with reality and there are other components of the law which are of historical value and of no practical relevance,” the Attorney-General noted.

Under the emergency measures, any person who fails to comply with the measures commits an offence under Section 152 of the Public Health Ordinance and is liable on summary conviction to the penalty provided under that section.

Any person found guilty of an offence, under Section 152, shall, unless some other penalty is provided thereof, be liable to a penalty not exceeding $50, or, in default of payment thereof, to imprisonment with or without hard labour for any term not exceeding two months.

The 1934 Public Health Ordinance

In the event that it is a continuing offence, Section 152(2) of the Ordinance provides that the offender shall be liable to a further penalty not exceeding $10 for everyday which the offence continues, and in default of payment, to imprisonment, for any period not exceeding six months.

This has evidently been a significant flaw of the legislation, since it imposes no deterring effect. Persons were quick to recognise this gap in the law and as has been evident – display no remorse towards adhering to the guidelines.

Further, Director General of the COVID-19 Task Force, Colonel Hussain, told this publication that the legislation governing the COVID-19 pandemic does not allow the taskforce to execute full enforcement in the manner required.

“The measures and our legal system do not support the enforcement [of the Covid-19 Guidelines]. Recognising the challenges that exist, we’ve taken both a ‘hard and soft’ approach and we have been allowing the reopening of activities in a gradual manner…. But the ordinance, for example, is outdated,” Hussain said.

The Attorney-General noted that the flaws within the Ordinance highlighted the need to introduce new public health legislation to reflect the current realties of Guyana and the region and the world.

Nandlall, in his budget debate presentation, told the National Assembly that some 25 pieces of legislation have been identified for work to begin on, namely a new Public Health Act, a new Mental Health Act, Tissue Transplant legislation, and a Food and Drug Act.

He had previously told this publication that updated public health legislation was imperative for Guyana at this crucial time of development of the country.

“No one will want to come and invest unless they feel safe health-wise, so we have to revamp the entire public health sector, and progress has begun with a menu of legislation that is under review,” Nandlall had said.

The Attorney-General noted that the new legislation would be crafted to reflect the modern reality of not only Guyana, but the world at large.

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